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The Federal District Court for Nebraska last Monday partly upheld and partly rejected the city of Fremont’s immigration enforcement ordinance. (See Keller v. Freemont and Martinez v. Fremont, Case No. 4:10CV3140, Feb. 20, 2012) The citizens of Fremont passed the ordinance as a ballot initiative in June 2010, after the City Council defeated a similar measure by one vote.

The Fremont ordinance has two major components. First, it seeks to end the employment of illegal aliens by requiring that employers in Fremont use E-Verify. (Ordinance, Part 5) Second, it seeks to stop the harboring of illegal aliens by requiring the city to check the immigration status of tenants. Specifically, the ordinance requires that renters first obtain an occupancy license from Fremont Police before signing a lease. (Ordinance, Part 3) The Fremont Police must then verify with the federal government the immigration status of individuals who have not declared themselves to be citizens or nationals. (Ordinance, Part 4) If the federal government reports that the individual is an illegal alien, the Police shall revoke the occupancy license. The revocation is subject to judicial review. (Id.)

One month after Fremont citizens adopted the ordinance, two federal lawsuits were filed against the City of Fremont: one by plaintiffs represented by the MALDEF and the other by plaintiffs represented by the ACLU. Together, these plaintiffs brought a litany of claims, including that the ordinance:

Violates the Equal Protection Clause of the Constitution, because the housing provisions unlawfully discriminates against similarly situated renters;
Violates the Due Process Clause of the Constitution, because it is impermissibly vague;
Violates the civil rights provisions found in federal law (42 U.S.C. § 1981) because the housing provisions deny Latinos the right to make and enforce contracts on the same basis as white persons;
Is preempted by federal law; and
Violates the Fair Housing Act because it has a “disproportionate negative impact on Latinos.”

In its decision issued last week, the Court largely upheld the Freemont ordinance. The Court held that the ordinance:

Does not violate the Equal Protection Clause because illegal aliens are not, by law, “similarly situated” as citizens and thus treating them different for housing purposes is not unlawful (Opinion at 21);
Does not violate the Due Process Clause, finding that the plaintiffs’ claims were no more than allegations of “general confusion,” which by law are insufficient to make a claim of vagueness (Opinion at 23-25);
Does not violate the civil rights provisions in 42 U.S.C. § 1981 because the plaintiffs essentially had claimed the ordinance has a disparate impact on Latinos, whereas the statute requires a showing of intentional discrimination to make a claim (Opinion at 32-35); and
Is not preempted by federal law with respect to the E-Verify requirement, citing the U.S. Supreme Court’s recent decision in Chamber of Commerce v. Whiting (Opinion at 12-16).

Regarding the housing provisions, however, the Court’s ruling was mixed. (See generally Opinion at 16-19)The Court ruled that the portion of the ordinance that requires tenants to obtain occupancy licenses and police to check the immigration status of tenants is not preempted by federal law. However, the Court found that the federal law does preempt the revocation of occupancy licenses of illegal aliens because doing so would not be in harmony with federal objectives. The Court stated that forcing illegal aliens from one jurisdiction to another, “where their identity and whereabouts may be obscured,” will impair the scheme Congress has created for the identification and removal of illegal aliens. (Opinion at 1 The Court adopted this reasoning from a Third Circuit decision (Lozano v. City of Hazleton, 620 F.3d 170 (3rd Cir. 2010)), which the Supreme Court has already vacated and remanded for another review.

The Court also found that the housing provision in the Fremont ordinance violated the Fair Housing Act because it has a disparate impact on Latinos, reasoning that the majority of illegal aliens in Fremont were likely Latinos. To spare the entire ordinance from being struck down, the court held that Fremont Police could not revoke an occupancy license, even after learning the occupant is an illegal alien. (Opinion at 25-30)

Illegal alien advocates immediately claimed victory after the Court issued its opinion. Shirley Mora James, an attorney with MALDEF, said the ruling was good news for people who feared they could be forced onto the streets because of the housing law. (Omaha World Herald, Feb. 21, 2012) Amy Miller, the ACLU’s legal director in Nebraska, declared, “This victory should be a signal to other communities that ‘show me your papers' is a phrase that belongs in our history books, not our law.” (Id.)

However, Kris Kobach, of counsel for IRLI who helped draft the ordinance, said the ruling left three-fourths of the ordinance intact. (Id.) “The city still can require all (rental housing) occupants to get an occupancy license, it can require them to disclose whether they're U.S. citizens, and the city can take the names of all aliens and confirm whether they're in the country lawfully or unlawfully,” Kobach said. (Id.)

“It's only the final step of revoking the occupancy license that the city can't do.” (Id.)